342.773 


coj>.3 


Herman  G.  James.  The  Preamble  and 
Boundary  Clauses  of  the  Illinois 
Constitution.  (1910) 


5-33  ^b. 
cop.  3 


ILLINOIS  HISTORICAL  SURVEY 


THE 

PREAMBLE  AND  BOUNDARY  CLAUSES 


OF     THE 


ILLINOIS    CONSTITUTION 


A    i'Al'KK   READ   BEFORE! 

THE    CHICAGO    HISTORICAL    SOCIETY 

JANUARY    18,  1910 


BY 

HERMAN    G.    JAMBS,    J.D. 

MKMBBB  01-  THE  II.I.INOIK  BAK 


PUBLISHED    BY  THE!   SOCIETY 
1910 


THE 

PREAMBLE  AND  BOUNDARY  CLAUSES 


OK      THE 


ILLINOIS    CONSTITUTION 


A    PAPER    READ    BEFORE! 

THE    CHICAGO    HISTORICAL    SOCIETY 

JANUARY    18,   191O 


HERMAN    G.    JAMES.    J.  D. 


MEMBER   OF  THE  ILLINOIS  BAR 


PUBLISHED    BY  THE  .SOCIETY 
1910 


.  173 

3-133? 


PREAMBLE.1 

A  study  of  the  preamble  of  a  constitution  may  prove 
interesting  and  instructive  to  the  student  of  history  even 
though  its  practical  value  to  a  lawyer  may  be  compar- 
atively slight.  It  has,  indeed,  been  asserted  that  a  pre- 
amble is,  strictly  speaking,  without  force  in  a  legislative 
sense  being  but  a  guide  to,  and  not  the  vehicle  of,  the  im- 
port of  a  statute.2  Other  writers,  however,  have  awarded 
to  the  preamble  of  a  constitution  or  a  statute  a  larger 
measure  of  importance3,  and  the  decisions  of  our  Federal 
Supreme  Court  contain  a  number  of  expressions  of  opinion 
on  the  meaning  of  the  Preamble  to  the  Federal  Constitu- 
tion which  have  unquestionably  been  of  the  greatest 
significance  in  the  development  of  the  powers  conceded 
by  that  tribunal  to  the  Federal  Government  under  the 
Constitution.4  Nor  can  it  make  any  difference  for  our 
purposes  whether  the  first  paragraph  of  the  Constitution 
of  Illinois  should  be  termed  an  enacting  clause  rather 
than  a  preamble,  as  has  been  asserted  of  the  almost  iden- 
tical Preamble  to  the  Federal  Constitution,5  or  whether 
it  partakes  of  the  nature  of  both  of  these  forms,  for  we 

'We,  the  People  of  the  State  of  Illinois  —  grateful  to  Almighty 
God  for  the  civil,  political  and  religious  liberty  which  he  hath  so 
long  permitted  us  to  enjoy  and  looking  to  Him  for  a  blessing  upon 
our  eudeavors  to  secure  and  transmit  the  same  unimpaired  to  suc- 
ceeding generations  —  in  order  to  form  a  more  perfect  government, 
establish  justice,  insure  domestic  tranquility,  provide  for  the  com- 
mon defense,  promote  the  general  welfare,  and  secure  the  blessings 
of  liberty  to  ourselves  and  our  posterity,  do  ordain  and  establish 
this  Constitution  for  the  State  of  Illinois. 

2Lieber,  "Hermeneutics,  "  p.  117,  note. 

3Story  on  the  Constitution  (4th  Ed.)  p.  338. 

Kent's  "Commentaries"  Lecture  XX,  p.  460  ff. 

4  Chisholm    v.     Georgia    2    Dallas    419;    Martin    v.    Hunter,  1 
Wheaton  305;  McCullock  v.  Maryland,  12  Wheaton  316. 

5  Andrews  "Manual  of  the  Constitution,"  p.  44. 

177 


are  here  concerned  primarily  with  the  origin  and  devel- 
opment of  the  first  paragraph  in  our  Constitution,  ex- 
pressly termed  by  the  framers,  whether  rightly  or  wrongly, 
a  Preamble. 

A  considerable  part  of  the  Preamble  to  the  present 
Constitution  of  Illinois  is  directly  traceable  to  the  first 
Constitution  of  the  state  adopted  in  1818,  the  opening 
paragraph  of  which  contains  the  following  language: 
'  'The  People  of  Illinois  Territory,  etc ....  in  order  to  estab- 
lish justice,  promote  the  welfare  and  secure  the  blessings 

of  liberty  to  themselves  and  their  posterity  do,  etc 

ordain  and  establish  the  following  constitution  or  form 
of  government."1  It  is  seen  that  all  of  these  clauses 
have,  with  some  minor  alterations,  become  part  of  the 
Preamble  to  the  present  Constitution. 

At  the  time  when  the  first  Illinois  Constitution  was 
formed  it  was  already  the  general  practice  in  the  other 
States  of  the  Union  to  prefix  preambles  to  their  constitu- 
tions, for  of  the  eighteen  states  which  had  adopted  con- 
stitutions before  1818, 8  all  but  three,  Georgia,  1798;  New 
Hampshire,  1792;  and  Vermont,  1793;  had  inserted  a 
clause  in  the  nature  of  a  preamble,  as  had  also  the  Fed- 
eral Constitution  of  1789.  Of  these  sixteen,  however, 
only  the  Indiana  Constitution  of  1816,'  the  Ohio  Consti- 
tution of  1802,  and  the  Federal  Constitution  of  1789  could 
have  served  as  models  for  the  Illinois  Constitution  in  this 
respect  as  they  contain  almost  the  identical  phraseology 
employed  in  the  last  named,  while  the  first  three  clauses 
mentioned  above  are  to  be  found  in  none  of  the  other 
preambles  of  that  time. 


'Debates  and  Proceedings  of  the  Constitutional  Convention 
of  1869,  p.  1889. 

2Delaware,  1792;  Georgia,  1798;  Indiana,  1816;  Kentucky, 
1792;  Louisiana,  1812;  Maryland,  1776;  Massachusetts,  1780;  Mis- 
sissippi, 1817;  New  Hampshire,  1792;  New  Jersey,  1776;  New  York, 
1777;  N.  Carolina,  1776;  Ohio,  1802;  Pennsylvania,  1790;  S.  Caro- 
lina, 1790;  Tennessee,  1796;  Vermont,  1793;  Virginia,  1776. 
Thorpe,  "American  Charters,  Constitutions,  and  Organic  Laws." 

178 


In  all  probability  the  direct  prototype  of  the 
Illinois  Preamble  of  1818  was  that  of  the  Indiana  Con- 
stitution of  1816  for  the  "wording  is  identical  in  the  two, 
save  that  in  the  Illinois  Constitution  the  third  person  is 
used  instead  of  the  first  person,  which  llatter  form  was 
indeed  adopted  in  the  original  committee  draft  of  the 
Constitution  of  Illinois,  though  subsequently  changed 
by  amendment.1  The  Constitution  of  Indiana  hav- 
ing been  adopted  less  than  two  years  before  the  Con- 
stitutional Convention  met  in  Illinois,  and  being  further- 
more the  fundamental  law  of  a  neighboring  state,  closely 
related  in  every  way,  it  was  naturally  the  instrument  to 
which  the  framers  of  our  first  Constitution  directly  looked 
for  suggestions  and  guidance,  even  as  Indiana  had  in  turn 
borrowed  largely  from  her  elder  sister  state,  Ohio,  all 
three  states  having,  in  close  succession,  been  carved  out 
of  the  original  North-west  Territory.  As  regards  the 
actual  wording  of  the  Preamble  there  is  no  doubt  that 
the  Federal  Constitution  was  the  ultimate  original  instru- 
ment of  which  all  three  of  the  above  state  constitution 
preambles  were  copies. 

A  determined,  but  unsuccessful  effort  was  made  to 
have  embodied  in  the  Preamble  to  the  Constitution  of 
1818  a  recognition  of  the  Deity  and  of  Christ.  Ford,  in 
his  "History  of  Illinois"  says,  "During  the  sitting  of  the 
convention  of  1818,  the  Rev.  Mr.  Wiley  and  his  congre- 
gation of  a  sect  called  Covenanters,  in  Randolph  County, 
sent  in  their  petition,  asking  that  body  to  declare  in  the 
Constitution  about  to  be  made  that  Jesus  Christ  was  the 
head  of  the  government  and  that  the  Holy  Scriptures 
were  the  only  rule  of  faith  and  practice.  "It  does  not 
appear,"  he  goes  on  to  say,  "by  the  journals  of  the 
Convention  that  this  petition  was  treated  with  any 
attention,  wherefore  the  Covenanters  never  yet8  fully 


1Journal  of  Constitutional  Convention  of  1818,  pp.  16,  42. 
zFord  "History  of  Illinois"  (1854)  p.  25. 

179 


UNIVERSITY  OF  1LLINO 
IIBRARY 


recognized  the  State  Government.  They  have  looked 
upon  it  as  'an  heathen  and  unbaptized  government 
which  denies  Christ,'  for  which  reason  they  have 
constantly  refused  to  work  the  roads  under  the  laws, 
serve  on  juries,  hold  any  office  or  do  any  other  act  show- 
ing that  they  recognize  the  government.  For  a  long 
time  they  refused  to  vote  at  the  elections;  and  never  did 
vote  until  the  election  in  1824  when  the  question  was 
whether  Illinois  should  be  made  a  slave  state,  when  they 
voted  for  the  first  time  and  unanimously  against  slavery." 

The  actual  wording  of  these  petitions,  of  which  there 
were  three  in  all,  as  shown  by  the  Journal  of  the  Con- 
vention of  1818  was  slightly  different,  though  substan- 
tially as  stated  by  Ford. t  Two  of  them  were  referred 
to  a  select  committee  which  was  later  discharged  from 
the  further  consideration  thereof,2  and  the  other,  pre- 
sented four  days  before  adjournment  of  the  convention  in 
August  was,  on  motion  of  Mr.  Cullom,  laid  on  the  table 
"until  the  fourth  day  of  March  next."3  This  agitation, 
though  unsuccessful  at  that  time,  had  its  effect  on  the 
consideration  of  the  same  general  question  thirty  years 
later  when  the  second  Constitution  of  Illinois  was  being 
framed. 

Coming  now  to  the  Constitution  of  1848  we  find 
several  changes  in  the  form  of  the  Preamble  from  that 
of  the  Constitution  of  1818,  which  changes  were  also  em- 
bodied in  the  Preamble  to  our  present  Constitution.  A 
distinct  paragraph  was  made  of  the  Preamble,  some  of 
the  clauses  in  the  first  Constitution  were  slightly  altered 
to  conform  to  the  style  adopted  by  the  majority  of  con- 
stitutions in  force  at  that  time,  and  four  new  phrases 
were  added.  Three  of  these  viz.  ("in  order  to")  (a)  "form 
a  more  perfect  government,"  (b)  "insure  domestic  tran- 
quility, "  and  (c)  "provide  for  the  common  defense," 

journal  of  Constitutional  Convention  of  1818,  pp.  13,  66. 
2Ibid,  p.  66. 
8Ibid,  p.  66. 

180 


were  evidently  taken  verbatim  from  the  Federal  Con" 
stitution,  for  they  were  to  be  found  in  no  other  state 
constitutions  in  1847,  except  the  last  clause  which  was 
found  in  the  Alabama  Constitution  of  1819. 1 

The  fourth  addition,  and  the  most  important  of  the 
changes,  was  the  present  reference  to  the  Deity.  It  has 
been  seen  how  the  failure  of  the  Convention  of  1818  to 
embody  any  mention  of  the  Deity  in  the  Constitution  of 
that  year  was  the  cause  of  violent  opposition  by  the  Cov- 
enanters. Yet  notwithstanding  that  fact  the  report  of 
the  Committee  on  Law  Reform  in  the  Convention  of 
1847  contained  a  Preamble  in  which  again  no  refer- 
ence was  made  to  the  Deity,2  although  by  this  time 
nine  state  constitutions  had  been  adopted  with  some 
such  clause  in  the  preamble. 3  The  Preamble  was,  how- 
ever, amended  by  the  addition  of  the  present  clause 
containing  an  expression  of  thanks  and  an  invocation,* 
written  by  Judge  Lockwood, 5  and  modeled  almost  ex- 
actly on  the  corresponding  clause  in  the  Constitution  of 
New  Jersey  adopted  three  years  before. 

That  the  Preamble  as  finally  adopted  in  the  Con- 
stitution of  1848  met  with  approval,  or  at  least  with  no 
strong  opposition,  is  evidenced  by  the  fact  that  it  was 
incorporated  without  the  slightest  change  both  into  the 
proposed  Constitution  of  1862  and  into  the  present  Con- 
stitution adopted  in  1870.  The  Convention  of  1862  in- 
deed adopted  the  former  Preamble  without  discussion, 
but  in  the  Convention  of  1870  the  Preamble  was  again 
the  subject  of  various  motions,  resolutions  and  petitions 

lCf.  Alabama  1819,  "insure  tranquillity,''  and  Maine,  1819, 
"provide  for  our  mutual  defense."  Cf.  also  Constitution  of  Re- 
public of  Texas,  1836. 

2Journal  of  the  Constitutional  Convention  of  1847,  p.  395. 

3 Conn.  1818,  Dela.,  1831,  Iowa,  1846,  Maine,  1819,  Mass.,  1780, 
New  Jersey,  1844,  New  York,  1846,  Rhode  Island,  1842,  Texas,  1845. 
Thorpe  "American  Charters,  etc." 

••Journal  of  Convention  of  1847,  p.  511. 

8Orville  Barry,  "The  Constitutions  of  Illinois,"  Illinois  Blue 
Book  1907,  p.  522. 

181 


with  respect  to  the  recognition  of  the  Deity,  before  be- 
ing finally  adopted  in  its  entirety  from  the  existing  Con- 
stitution. One  resolution  called  for  a  recognition  of 
Jesus  Christ  in  addition  to  recognizing  Almighty  God, 1 
and  was  supported  by  a  petition  to  that  effect  from 
divers  citizens  of  Washington  County.2  Another  reso- 
lution again  proposed  a  Preamble  omitting  all  reference 
to  the  Supreme  Being3,  while  the  Committee  on  the  Bill 
of  Rights  reported  a  preamble  containing  a  recognition 
of  both  Jesus  Christ  and  Almighty  God.4 

A  Mr.  Goodell,  impressed  with  the  dignity  of  the  body 
of  which  he  was  a  member,  offered  the  following:  "Re- 
solved, that  the  Committee  on  Bill  of  Rights  be  requested 
to  inquire  into  the  expediency  of  prefixing  the  word 
"Almighty"  to  "God,"  as  proposed  in  the  Preamble  re- 
ported to  this  convention  by  that,  committee,  as  said 
phrase  clearly  implies  and  asserts  that  sovereignty  exists 
elsewhere  than  in  this  Convention."5  These  various 
resolutions  and  reports  evoked  considerable  debate6  all 
terminating,  however,  in  a  substitute  motion  to  adopt  the 
Preamble  to  the  existing  Constitution  (1848)  in  lieu  of 
all  pending  propositions,  which  was  adopted  by  the  Con- 
vention.7 

That  this  demand  for  an  express  recognition  of  the 
Supreme  Being  in  the  fundamental  law  of  the  state  was 
not  an  isolated  phenomenon  in  Illinois,  but  merely  one 
manifestation  of  a  general  growing  conviction  among  the 

"Journal  of  the  Constitutional  Convention  of  1869,  p.  96. 

"Debates  and  Proceedings  of  the  Constitutional  Convention  of 
1869  p.  479. 

3Journal  of  Constitutional  Convention  of  1869,  p.  179. 

4 1  bid,  p.  207. 

8 1  bid,  p.  238. 

•Debates  and  Proceedings  of  Constitutional  Convention  of  1869, 
pp.  231-235,  276-278.  Cf.  also  Illinois  State  Journal,  Jan.  28,  1870, 
for  a  communication  on  the  subject  of  recognizing  Christ  in  the 
Constitution. 

'Journal  of  Constitutional  Convention  of  1869,  p.  242.  Cf.  Illi- 
nois State  Journal,  Jan.  25,  1870,  for  editorial  comment  on  the  pro- 
posed preambles. 

182 


people  of  the  United  States  in  favor  of  such  a  recog- 
nition, appears  firstly  from  the  fact  that  whereas  in  1818 
of  the  eighteen  constitutions  then  in  force,  only  two, 
viz.,  Delaware,  1792,  and  Massachusetts,  1780,  had 
contained  a  direct  recognition  of  the  Supreme  Being, 
other  than  the  references  in  the  requirements  of  oaths  of 
office  and  the  provision  protecting  religious  freedom 
found  in  all  the  constitutions,  by  1848  when  such  a 
clause  was  inserted  into  the  Constitution  of  Illinois  for 
the  first  time,  nine  of  the  twenty-seven  state  constitu- 
tions then  in  force  contained  such  a  clause  in  the  Pre- 
amble, two  of  the  sixteen  states  without  it  in  1818  hav- 
ing embodied  it  in  subsequent  constitutions,  viz,,  New 
Jersey,  1844,  and  New  York,  1846.  At  the  present  time, 
moreover,  forty-one  of  the  forty-six  state  constitutions 
contain  a  clause  similar  to  that  in  the  Illinois  Constitu- 
tion, and  of  the  remaining  five,  viz.  :  New  Hampshire, 
1792;  Oregon,  1857;  Tennessee,  1870;  Vermont,  1793; 
and  West  Virginia,  1872,  those  of  New  Hampshire  and 
Vermont  are  still  the  constitutions  of  the  earliest  period 
when,  as  has  been  seen,  only  two  states  contained  a 
clause  of  that  nature.  It  is  interesting  fact  to  note  in 
this  connection  that  in  the  last  Constitutional  Conven- 
tion for  Michigan  in  1908,  no  suggestion  had  been  made 
to  insert  a  clause  in  recognition  of  the  Deity — there 
having  been  no  such  clause  in  either  of  the  two  prior 
constitutions  of  that  state — until  a  resolution  was  pre- 
sented on  the  floor  of  the  Convention  from  a  Free- 
thinkers Society  in  Detroit  protesting  against  any  at- 
tempt to  insert  such  a  clause.  Very  soon  thereafter  such 
a  clause  was  reported,  and  adopted  without  discussion. 

The  growing  sense  of  the  propriety  of  inserting 
some  recognition  of  the  Deity  in  constitutions,  appears, 
secondly,  in  that  the  Federal  Constitution  still  dating 
from  that  early  period  and  having  no  reference  to  the 
Deity  has  been  subjected  to  considerable  criticism  on 
that  account,  which  culminated  in  1863  and  1864  during 

183 


the  dark  days  of  the  Civil  War  in  three  religious  conven- 
tions, one  held  at  Xenia,  Ohio,  Feb.  3,  1863,  one  at 
Sparta,  Illinois,  three  days  later  and  the  third  in  Alle- 
gheny City,  Pa.,  Jan.  27,  1864,  all  advocating  an  amend- 
ment to  the  Constitution  so  as  to  include  an  acknowl- 
edgment of  the  Deity  and  of  Christ  in  the  Preamble.1 

In  conclusion  it  may  be  added  that  at  the  present 
time  all  but  three  state  constitutions,  viz.:  New  Hamp- 
shire, 1792;  Vermont,  1793;  and  West  Virginia,  1872, 
contain  clauses  in  the  nature  of  a  preamble  though  not 
expressly  so  designated  in  them  all.  These  preambles  are 
as  a  rule  similar  to  that  of  the  Constitution  of  Illinois, 
though  with  a  few  exceptions  somewhat  shorter.  Never- 
theless they  display  in  this  respect  marked  differences, 
ranging  from  a  full  page  introduction  in  the  Constitution 
of  Tennessee,  1870,  and  an  extended  philosophical  dis- 
quisition on  the  nature  of  government,  in  that  of  Massa- 
chusetts, 1780,  on  the  one  hand,  to  the  concise  two  and 
three  line  preambles  in  the  constitutions  of  North  Da- 
kota, 1889,  and  Oregon,  1857,  on  the  other.  Of  the  two 
general  subjects  in  the  Preamble  of  the  Illinois  Consti- 
tution, viz.,  the  recognition  of  the  Deity,  and  the  pur- 
poses of  the  Constitution,  the  former  is  dealt  with  also 
in  all  but  two  of  the  other  state  constitutions  contain- 
ing preambles,  vis.,  Oregon,  1857,  and  Tennessee,  1870, 
while  the  latter  is  included  as  well  in  more  than  half 
of  the  present  preambles. 

From  the  above  considerations  therefore,  it  is  seen 
that  whatever  the  legal  import  or  practical  significance 
of  the  preamble  to  a  constitution  may  be,  it  has  for  a 
century  and  a  quarter  had  a  recognized  place  in  the  form 
of  our  American  constitutions,  from  the  earliest  consti- 
tutions of  1776  to  the  most  recent  ones  of  1907  and  1908. 


'Cornelison    "Religion    and    Civil    Government   in  the  United 
States,"  pp.  230  ff. 


184 


ARTICLE  I. 

BOUNDARIES.  * 

The  first  public  act  of  any  subsequent  significance, 
dealing  with  the  title  and  jurisdiction  to  any  part  of  the 
territory  now  comprised  within  the  State  of  Illinois,  was 
the  Virginia  Charter  of  1609.  By  this  Charter  James  I. 
granted  to  the  London  Company,  incorporated  in  1609, 
two  hundred  miles  to  the  north  and  two  hundred  miles 
to  the  south  of  Old  Point  Comfort,  along  the  coast,  and 
"all  that  space  and  circuit  of  land  lying  from  the  sea- 
coast  of  the  precinct  aforesaid,  up  into  the  land  through- 
out, from  sea  to  sea,  west  and  northwest."2  Upon  this 
charter,  annulled  in  1624  by  quo  warranto  proceedings, 
Virginia  later  partly  based  her  claim  to  the  lands  lying 
northwest  of  the  Ohio,  including  the  present  State  of 
Illinois.  This  charter  was  followed  in  1620  by  the  Charter 
of  New  England  by  which  James  I.  granted  to  the  reor- 
ganized Plymouth  Company  of  1606  all  the  land  lying 
and  being  in  breadth  from  40°  north  latitude  to  48°  and 
"in  length  by  all  the  breadth  aforesaid  throughout 


1The  boundaries  and  jurisdiction  of  the  State  shall  be  as  fol- 
lows, to- wit:  Beginning  at  the  mouth  of  the  Wabash  River;  thence 
up  the  same,  and  with  the  line  of  Indiana  to  the  northwest  corner 
of  said  State;  thence  east  with  the  line  of  the  same  State,  to  the 
middle  of  Lake  Michigan;  thence  north  along  the  middle  of  said 
lake  to  north  latitude  forty-two  degrees  and  thirty  minutes;  thence 
west  to  the  middle  of  the  Mississippi  river  and  thence  down  along 
the  middle  of  that  river  to  its  confluence  with  the  Ohio  River,  and 
thence  up  the  latter  river  along  its  northwestern  shore  to  the  place 
of  beginning.  PROVIDED,  That  this  State  shall  exercise  such  juris- 
diction upon  the  Ohio  River  as  she  is  now  entitled  to  or  such  as 
may  hereafter  be  agreed  upon  by  this  State  and  the  State  of  Ken- 
tucky. 

2 Second  Charter  of  Virginia  1609,  Thorpe,  "American  Chart- 
ers, Constitutions  and  Organic  Laws,"  v.  7,  p.  3790. 

185 


the  main  land  from  sea  to  sea,"1  which  grant  there- 
fore, covered  all  that  part  of  the  present  State  of 
Illinois,  situated  north  of  an  east  and  west  line  lying 
about  fifteen  miles  north  of  Springfield;  that  is  to  say, 
it  included  the  entire  northern  half  of  the  present  State. 


Map  of  Illinois^  showing  Boundaries  as  Prescribed  by  the  Ordinance 
of  1787,  and  as  Established  by  the  Enabling  Act  of  1818. 

The  Council  of  New  England  then  granted  in  1628  to 
a  company  composed  of  Endicott  and  five  named  associ- 
ates all  that  part  of  New  England  between  three  miles 
north  of  the  Merrimac  river  and  three  miles  south  of  the 


'The  Charter  of  New  England,  Thorpe,  Vol.  3,  p.  1872. 

186 


southermost  point  of  Massachusetts  Bay  or  of  the  Charles 
river,  "in  length  and  longitude  of  and  within  all  the 
breadth  aforesaid,  throughout  the  main  lands  there,  from 
the  Atlantic  and  Western  Sea  and  Ocean  on  the  east 
part  to  the  South  Sea  on  the  west  part."1  This 
grant,  therefore,  did  not  extend  as  far  south  as 
the  lands  of  the  New  England  Council  extended  and 
covered  only  about  the  northern  one-tenth  of  the  present 
state,  i.  e.  north  of  lat.  n.  42°  2',  which  is  practically  the 
line  of  the  present  northern  city  limits  of  Chicago.  This 
grant  was  confirmed  by  Charles  I.  in  the  following  year2 
and  became  the  basis  of  the  Massachusetts  claims  to 
western  lands  insisted  upon  in  1779,  this  charter  having 
been  annulled  by  quo  warranto  proceedings  in  1684  and 
a  new  charter  granted  in  16913  conveying  land  to 
the  westward  as  far  as  the  colonies  of  Connecticut 
extended  in  that  direction. 

This  last  colony  held  under  a  sea-to-sea  charter 
by  Charles  II.  in  1662  granting  to  John  Winthrop 
and  associates  all  lands  west  of  Narragansett  Bay, 
and  south  of  the  Massachusetts  line  and  between 
it  and  the  sea  and  "in  longitude  as  the  line  of  the 
Massachusetts  colony  running  from  east  to  west,  that 
is  to  say  from  the  said  Narragansett  Bay  on  the  east  to 
the  South  Sea  on  the  west  part."4  It  was  this  charter, 
never  annulled  by  judicial  proceedings,  and  not  even 
physically  surrendered  upon  demand  of  Sir  Edward 
Andros  in  1687,  which  supported  the  claim  of  Connecti- 
cut to  that  part  of  what  is  now  Illinois  situated  between 
lat.  n.  41°,  which  runs  a  few  miles  south  of  Kankakee, 
and  the  southern  boundary  of  the  Massachusetts  claim 
at  42°  2'. 

1  Cf.  Charter  of  Massachusetts  Bay,   1629;    Thorpe,  American 
Charters,  etc.,  v.  3  p.  1847. 

2Charter  of  Massachusetts  Bay,  1629.  Ibid.,  p.  1846. 
•Charter  of  Massachusetts  Bay,  1691.  Ibid.,  p.  1870. 
4Charter  of  Connecticut  1662,  Thorpe,  v.  I.,  p.  529. 

187 


Such  then,  were  the  public  acts  up  to  the  year  1663, 
purporting  to  affect  the  title  to  lands  now  part  of  the 
State  of  Illinois.  It  was  not,  however,  until  ten  years 
later  that  the  first  white  man  is  known  to  have  set  foot 
within  the  present  territory  of  Illinois,  and  the  ones  thus 
to  claim  this  country  by  right  of  discovery  were  not  as 
is  well-known,  Englishmen,  but  two  Frenchmen;  the  one, 
Father  Marquette  the  Jesuit  missionary,  the  other  Louis 
Joliet,  representing  the  French  government  at  Quebec. 
These  two  men  in  1673  descended  the  Wisconsin  river  to 
the  Mississippi  which  they  followed  down  to  the  mouth  of 
the  Arkansas,  ascending  on  their  way  back  the  Illinois 
river  to  its  upper  waters,  crossing  over  to  Lake  Michigan 
at  Chicago.  From  that  time  on  the  Illinois  country  was 
entered  by  a  number  of  French  traders  and  explorers, 
chief  among  whom  was  the  famous  La  Salle.  About  the 
year  1700  the  French  villages  of  Kaskaskia  and  Cahokia 
on  the  Mississippi  river  were  settled  and  French  coloni- 
zation slowly  continued  until  the  treaty  of  1763. *  For 
almost  a  century,  therefore,  after  Marquette's  voyage, 
the  French  had  by  occupation  substantiated  their 
claim  to  title  and  jurisdiction  by  the  right  of  discovery. 

Then  at  the  close  of  the  French  and  Indian  War  the 
King  of  France  was  by  the  Treaty  of  Paris,  1763, 
obliged  to  surrender  to  Great  Britain  everything  that  he 
possessed  on  the  left  side  of  the  Mississippi  river,  except 
the  town  of  New  Orleans,  and  the  confines  of  the  do- 
minions of  Great  Britain  were  fixed  by  a  line  drawn 
along  the  middle  of  the  Mississippi  river  from  its 
source  to  the  River  Iberville.2  By  this  treaty,  therefore, 
the  first  international  act  involving  the  title  to  land 
within  the  present  State  of  Illinois,  there  was  fixed  a 

1  Greene,  The    Government  of  Illinois,  pp.  7.  seq, 

2Treatyof  Paris,  1763,  Gentleman's  Magazine  XXXIII.,  p.  121. 
The  Iberville,  now  called  Manshac  Bayou,  is  an  outlet  of  the  Mis- 
sissippi some  fifteen  miles  below  Baton  Rouge,  connecting  the 
Mississippi  on  the  west  with  the  Amite  river  on  the  east.  See 
Thwaites  "Early  Western  Travels,"  v.  VIII.,  p.  338.  Also  Index. 

188 


boundary  line  a  part  of  which  has  remained  the  western 
boundary  to  the  territory  now  included  within  Illinois 
from  that  time  down  to  the  present.  Following  this 
treaty,  and  in  the  same  year  there  was  issued  a  procla- 
mation by  George  III.  providing  that  no  colonists  should 
settle  west  of  the  watershed  for  the  Atlantic  Ocean;1 
all  the  valley  from  the  Great  Lakes  to  West  Florida  and 
from  the  Alleghanies  to  the  Mississippi  being  thereby  set 
apart  for  the  Indians. 

In  1778  title  and  jurisdiction  to  the  region  now 
partly  included  in  the  State  of  Illinois  was  again 
claimed  by  Virginia  as  a  result  of  the  conquests 
by  George  Rogers  Clark,  who  in  July  of  that  year 
under  a  commission  from  Governor  Patrick  Henry  of 
Virginia  captured  the  settlements  of  Kaskaskia  and  Ca- 
hokia,  and  several  other  posts  in  the  name  of  that  com- 
monwealth.8 Then  by  Act  of  Dec.  9,  1778,  Virginia  or- 
ganized the  county  of  Illinois, 3  '  comprising  all  the 
country  north  and  west  of  the  Ohio  river  claimed  under  the 
charter  of  Virginia  1609. 

The  last  years  of  the  Revolution  saw  the  territory 
comprised  within  the  present  State  of  Illinois,  claimed  in 
whole  or  in  part  by  as  many  as  five  different  govern- 
ments. England  had  of  course  not  yet  surrendered  the 
title  and  jurisdiction  acquired  by  her  from  France  through 
the  Treaty  of  Paris.  Virginia,  as  has  been  seen,  claimed 
the  whole  of  the  country  northwest  of  the  Ohio  upon  the 
double  basis  of  her  first  charter  and  subsequent  conquest, 
while  Massachusetts  and  Connecticut,  asserted  claims 
based  on  their  early  charters.  New  York  claimed  a  right 
to  the  Ohio  valley  under  a  treaty  from  the  Iroquois  Indi- 
ans who  had  asserted  jurisdiction  over  it,  while  the  non- 
claimant  states  contended  that  the  lands  should  belong 
to  the  United  States  as  a  whole  and  be  at  the  disposal 

Annual  Register  1763,  pp.  208-213. 

2Hildreth  "History  of  the  United  States,"  vol.  III.,  p.  260. 

3Illinois  Historical  Collections,  Virginia  Series,  vol.  I.,  p.  9. 

189 


of  Congress  for  carrying  on  the  war.  Maryland  especially 
denied  the  claims  of  the  four  states  to  lands  in  the  west 
and  absolutely  refused  to  ratify  the  Articles  of  Confeder- 
ation except  on  condition  that  the  claimant  states  cede 
their  claims  to  Congress.1  Inasmuch  as  the  refusal  of 
Maryland  to  ratify  the  Articles  of  Confederation  on  any 
other  basis  threatened  to  defeat  the  accomplishment  of 
the  whole  plan,  Congress  on  Sept.  6,  1780,  requested  a 
liberal  cession  to  the  United  States  of  a  portion  of  the 
claims  of  the  several  states  to  waste  lands  in  the  western 
country,  refusing  at  the  same  time  to  go  into  the  ques- 
tion of  the  validity  of  the  various  claims  asserted.8 
The  first  state  to  act  on  this  request  was  New  York  when 
in  1780  she  authorized  her  delegates  in  Congress  to  cede 
to  the  United  States  her  claims  to  the  western  lands. 
This  was  done  by  deed  in  March,  1781, 3  accepted  by 
Congress  in  October,  1782, 4  granting  all  the  claim 
to  lands  west  of  a  meridian  line  drawn  through 
the  most  westerly  point  of  Lake  Ontario.  Though 
the  claims  of  New  York  probably  did  not  extend 
to  any  part  of  what  is  now  Illinois,  her  ready  cession 
paved  the  way  for  similar  action  by  the  other  states 
which  did  lay  claim  to  some  or  all  of  the  present  state. 
This  movement  was  further  hastened  by  the  promise  of 
Congress  to  erect  the  lands  ceded  into  distinct  republi- 
can states,  and  in  January,  1781,  Virginia  surrendered 
her  claim  to  the  country  northwest  of  the  Ohio  river. 6 
In  1783  she  authorized  the  giving  of  a  deed,  on  certain 
conditions,  which  was  done  in  March,  1784.  Meanwhile, 
by  the  Treaty  of  Peace  in  1783  England  had  been 
obliged  to  surrender  her  title  to  the  western  lands,  thus 


journals  of  Congress,  V.,     p.  160. 
2 Journal  of  Congress  vol.  VI.,  p.  123. 
"Ibid.,  vol.  VII.,  p.  36. 
4 1  bid.,  p.  373. 

5  Cf.  Virginia  Act  of  Cession,  Thorpe, ' '  American  Charters,  Con- 
stitutions and  Organic  Laws"  vol.  II.,  p.  954. 

190 


giving  the  free  and  undisputed  ownership  to  all  of  the 
present  State  of  Illinois  south  of  the  Connecticut  claim, 
to  the  United  States.  In  April,  1785,  Massachusetts 
through  her  delegates  in  Congress  ceded  her  claims  to 
western  lands  to  the  United  States, a  followed  in  Sep- 
tember, 1786,  by  a  similar  cession  on  the  part  of  Connec- 
ticut, 2  removing  thereby  the  last  of  the  adverse  claims 
to  the  country  northwest  of  the  Ohio. 

The  year  1787  witnessed  the  passage  of  the  famous 
Northwest  Ordinance,  the  first  law  of  the  new  govern- 
ment to  deal  with  the  political  division  of  the  newly 
acquired  territory.  Article  V.  of  the  Ordinance  pro- 
vided for  the  formation  in  the  territory  northwest  of  the 
Ohio,  of  not  less  than  three  nor  more  than  five  states. 
The  boundaries  of  the  westernmost  state,  if  three  were 
to  be  formed,  should— subject  to  approval  by  Virginia 
whose  deed  of  cession  had  been  conditioned  on  a  differ- 
ent division3 — be  as  follows:  the  rivers  Mississippi,  Ohio 
and  Wabash,  a  direct  line  drawn  from  the  Wabash  and 
Post  Vincennes  due  north  to  the  territorial  line  be- 
tween United  States  and  Canada,  and  by  the  said 
line  to  the  Lake  of  the  Woods  and  the  Mississippi,4 
which  last  line,  it  may  be  mentioned,  was  an  impossible 
one.  This  Act,  therefore,  designated  the  present  west- 
ern, southern,  southeastern  and  also — save  for  a  slight 
change  introduced  by  the  Enabling  Act  of  1818 — the 
eastern  boundaries  of  Illinois,  for  Virginia  subsequently 
agreed  to  this  division  into  states  of  the  ceded  territory. 6 

The  Ordinance  further  provided  that"  the  boundaries 
of  these  three  States  shall  be  subject  so  far  to  be  altered 
that  if  Congress  shall  hereafter  find  it  expedient,  they 

journals  of  Congress,  X.,  p.  91  ff. 

2Ibid.  XI.,  p.  160. 

•Virginia  Deed  of  Cession,  1784.     Thorpe,  v.  2,  p.  957. 

4The  Northwest  Territorial  Government.  Thorpe,  "American 
Charters,  etc.,"  v.  2,  p.  957. 

6 Virginia  Act  of  Ratification,  1788.  Thorpe,  "American  Chart- 
ers, etc.,"  v.  2,  p. 963. 

191 


shall  have  authority  to  form  one  or  two  States  in  that 
part  of  said  territory  which  lies  north  of  an  east  and  west 
line  drawn  through  the  southerly  bend  or  extreme  of 
Lake  Michigan."  The  Ordinance  furthermore  stipulated 
that  its  "articles  shall  be  considered  as  articles  of  com- 
pact between  the  original  States  and  the  people  and 
States  in  said  territory  and  forever  remain  unalterable 
unless  by  common  consent."  This  enactment  passed  by 
the  Congress  of  the  Confederation  was  re-affirmed  by  the 
First  Congress  of  the  United  States  in  1789  and  changed 
only  so  far  as  requisite  to  adapt  it  to  the  Constitution  of 
the  United  States.1 

At  the  commencement,  therefore,  of  our  national 
life  under  the  Constitution  we  find  the  present  State  of 
Illinois  included  within  the  Northwest  Territory  where  it 
remained  until  the  year  1800.  In  May  of  that  year  the 
President  signed  the  act  to  divide  the  Northwest  Terri- 
tory into  two  separate  governments  by  making  Indiana 
Territory  out  of  all  that  part  of  the  territory  northwest 
of  the  Ohio  river,  "which  lies  to  the  westward  of  a  line 
beginning  at  the  Ohio  opposite  to  the  mouth  of  the 
Kentucky,  and  running  thence  to  Fort  Recovery,  and 
thence  north  until  it  shall  intersect  the  territorial  line 
between  the  United  States  and  Canada."  Vincennes  on 
the  Wabash  river  being  made  the  seat  of  govern- 
ment.2 

This  act  by  which  the  present  State  of  Illinois 
became  part  of  the  Indiana  Territory  went  into 
effect  on  July  4,  1800,  from  which  time  no  further 
change  of  government  or  organization  occurred  until 
February,  1809,  when  the  act  was  approved  for  divid- 
ing the  Indiana  Territory  into  two  separate  govern- 
ments, to  take  effect  on  March  1st  of  that  year. 
By  this  act  the  Territory  of  Illinois  was  created 


Northwest  Territorial  Government,  1789.  Thorpe,  "Ameri- 
can Charters,  etc."  v.  2,  p.  963. 
22  U.  S.  Statutes  at  Large,  S3. 

192 


out  of  that  part  of  Indiana  Territory  lying  "west  of  the 
Wabash  River  and  a  direct  line  drawn  from  the  said 
Wabash  River  and  Post  Vincennes  due  north  to  the  ter- 
ritorial line  between  the  United  States  and  Canada, (>1 
with  the  seat  of  government  at  Kaskaskia,  on  the  Mis- 
sissippi river.  The  boundaries  thus  established  for  the 
new  Territory  of  Illinois  were  the  same  as  those  pro- 
vided in  the  Ordinance  of  1787  for  the  westernmost  state 
to  be  formed  out  of  the  Northwest  Territory.  Meanwhile 
by  the  purchase  of  Louisiana  in  1803  the  western  bound- 
ary to  the  Illinois  country,  then  part  of  Indiana  Territory, 
ceased  to  be  the  dividing  line  between  United  States 
lands  and  foreign  soil,  and  Illinois  was  finally  surrounded 
on  all  sides  by  territory  belonging  to  the  United  States 
or  some  of  them. 

After  changing  from  the  first  form  of  territorial 
government  to  the  representative  form  in  1812,  the  Illi- 
nois country  was,  in  1817,  ready  for  the  most  important 
step  open  to  the  inhabitants  thereof,  to-wit,  the  forma- 
tion of  a  separate  state  government.  Ohio  had  been 
admitted  as  a  state  in  1802  with  the  boundaries  desig- 
nated by  the  Ordinance  of  1787  for  the  eastern  state  to 
be  formed  out  of  the  Northwest  Territory  (in  case  more 
than  three  were  to  be  formed)  with  a  proviso  that  if  the 
northern  boundary  as  prescribed  by  that  Ordinance  should 
pass  to  the  south  of  the  mouth  of  the  Miami  river,  it 
should,  with  the  assent  of  Congress,  be  changed  to  in- 
clude the  mouth  of  said  river. s 

In  1816  Indiana  was  added  to  the  states  of  the 
Union  with  its  eastern,  southern  and  western  bound- 
aries as  prescribed  in  the  same  Ordinance  but  with 
its  northern  boundary  ten  miles  north  of  the  east 
and  west  line  drawn  through  the  southerly  bend  of 

territorial  Government  of  Illinois — 1809,  Thorpe,  "American 
Charters,  Constitutions  and  Organic  Laws,"  p.  966. 

Constitution  of  Ohio  1802,  Art.  VII.,  §  6.,  Thorpe,  "American 
Charters,  Constitutions  and  Organic  Laws,''  vol.  5,  p.  2901. 

193 


Lake  Michigan.1  Congress  added  a  proviso  that  the 
boundaries  as  determined  be  ratified  by  the  Consti- 
tutional Convention  of  Indiana  "otherwise  they  shall  be 
and  remain  as  now  prescribed  by  the  Ordinance"  of  1787, 
whereby  it  appears  that  Congress  expressly  recognized 
that  in  so  changing  the  northern  boundary  of  Indiana  it 
departed  from  the  requirements  of  the  Ordinance  of  1787 
in  that  respect,  a  fact  worth  noting  in  connection  with 
the  Illinois-Wisconsin  boundary  controversy  some  thirty 
years  later,  which  was  based  on  an  alleged  departure  of 
the  same  kind  in  fixing  the  present  northern  boundary 
of  Illinois.  The  Enabling  Act  for  Indiana  furthermore 
provided  for  concurrent  jurisdiction  on  the  Wabash  river 
with  the  state  to  be  formed  west  thereof  so  far  as  the 
said  river  should  form  a  common  boundary  to  both, 
which  provision  was  not,  however,  expressly  mentioned 
in  the  Constitution  of  Indiana  adopted  in  the  same  year. 
In  December,  1817,  the  territorial  legislature  of 
Illinois  prepared  a  memorial  to  Congress  praying  for  leave 
to  form  a  state  government  in  this  territory,2  which 
memorial  was  sent  to  the  territorial  delegate  in  Con- 
gress, Nathaniel  Pope.  On  his  motion  a  bill  was  intro- 
duced to  authorize  the  formation  of  a  new  state  as  re- 
quested by  the  memorial,  with  the  northern  boundary 
formed  by  an  east  and  west  line  drawn  through  the  most 
southerly  bend  of  Lake  Michigan  in  accordance  with  the 
Ordinance  of  1787. 3  On  motion  of  Mr.  Pope  himself, 
the  Enabling  Act  was  amended  as  to  the  boundary  pro- 
visions by  fixing  the  northern  boundary  at  lat.  n.  42°  30', 
its  present  location,  and  including  the  quadrilateral  in 
Lake  Michigan  bounded  by  the  northern  line  of  Indiana,, 
the  middle  of  Lake  Michigan,  the  parallel  n.  42°  30',  and 
the  continuation  of  the  western  boundary  of  Indiana. 

Enabling  Act  for  Indiana,  §  2,  Thorpe,  vol.  2,  p.  1053. 
2 Journal  of  Legislative  Council,  Dec.  8,  1817. 
3Annals  of  Congress,  1818,  vol.  II.,  p.  1677. 

194 


of  Illinois,  Showing  Cessions  by  Virginia,  Massachusetts  and 
Connecticut  to  the  United  States  of  the  parts  of  Illinois 
included  in  the  claims  of  those  States  to 
Western  Lands. 


This  amendment  as  to  the  northern  extent  of  the  state 
was  of  the  utmost  importance  both  to  the  State  of  Illinois 
itself  and,  as  Mr.  Pope  at  that  time  prophesied,  to  the 
safety  of  the  entire  Union.  Had  the  northern  boundary 
been  fixed  as  prescribed  by  the  Ordinance  of  1787,  the 
5tate  would  have  extended  only  to  about  lat.  n.  41C  37'. 

195 


By  this  amendment,  therefore,  offered  by  Mr.  Pope  on  his 
own  responsibility,  and  without  instructions  from  his 
constituents,  fourteen  of  the  present  northern  counties1 
including  a  frontage  on  Lake  Michigan  and  the  present 
City  of  Chicago  were  added  the  State  of  Illinois.  The 
Enabling  Act  was  passed  as  amended  without  opposition8 
and  was  approved  in  April,  1818.  Mr.  Pope's  chief  argu- 
ments for  giving  Illinois  a  harbor  on  Lake  Michigan  werei 

(a)  the  additional  security  to  the  Union  against  a  possible 
desire  of  the  south-western  states  to  break  away  from  the 
rest,  by  giving  Illinois  communication  through  the  Lakes 
with  Indiana,  Ohio,  Pennsylvania,    and  New   York;  and 

(b)  the  encouragement  of  the  construction  of  the  Illinois- 
River-to-Lake-Michigan  Canal.     How  wisely  Nathaniel 
Pope  forsaw  the  future  in  making  Illinois  the  keystone 
State  of  the  Union  was  demonstrated  over  forty  years 
later  when  the  fate  of  the  Union    hung  largely  on  the 
stand  to  be  taken  by  Illinois  in  the  War  of  the  Rebellion. 

What  the  addition  of  so  much  productive  territory, 
agriculturally  and  industrially,  meant  to  the  state  is,  of 
course,  obvious,  and  it  is  small  wonder,  therefore,  that  Wis- 
consin, claiming  that  under  the  Ordinance  of  1787  the 
northern  boundary  line  of  Illinois  was  fixed  about  61  miles 
farther  south,  should  have  made  an  effort  to  recover  the 
territory  between  the  line  through  the  southerly  bend  of 
Lake  Michigan  and  the  latitude  n.  42°  30'.  And  so  indeed 
she  did  for  the  ten  years  prior  to  the  admission  of  Wiscon- 
sin as  a  state  in  1848,  during  which  the  agitation  of  this 
boundary  question  was  revived  again  and  again.  On  the 
one  hand  the  advocates  of  the  Wisconsin  claim,  among 
them  curiously  enough,  very  many  of  the  Illinois  citizens 
living  in  the  disputed  territory,  contended  that  the  Ordi- 
nance of  1787  was,  as  it  in  terms  declared  itself  to  be,  a 


1Jo  Daviess,  Stephenson,  Winnebago,  Boone,  McHenry,  Lake, 
Carroll,  Whiteside,  Lee,  Ogle,  DeKalb,  Kane,  DuPage  and  Cook. 

2  Annals  of  Congress,  1818,  vol.  II.  p.  1677.  15th  Congress,  1st: 
Session . 

196 


compact  binding  upon  the  United  States  and  the  several 
states  and  unalterable  save  with  the  consent  of  all  parties 
concerned;  that  the  northern  boundary  of  the  southern 
state  to  be  formed  out  of  the  Territory  of  Illinois  was 
fixed  by  the  Ordinance  of  1787  at  the  line  through  the 
southermost  point  of  Lake  Michigan;  and  that  the  line 
latitude  n.  42°  30'  having  been  fixed  without  their  con- 
sent or  that  of  the  people  living  in  the  disputed  territory 
was  in  violation  of  the  Ordinance  of  1787  and  void.  On 
the  other  side  was  the  contention  that  the  northern 
boundary  as  fixed  by  the  Enabling  Act  of  1818  was  con- 
sistent with,  and  not  in  violation  of,  the  Ordinance  of 
1787,  according  to  an  interpretation  of  the  words  of 
Art.  V.  which  we  shall  consider  in  a  moment. 

The  two  sides  to  this  controversy  have  been  so  fully 
and  clearly  stated  in  several  publications,1  and  so  admir- 
ably treated  in  a  paper  read  before  this  Society  by  Mr. 
William  Radebaugh  some  five  or  six  years  ago,  that  it  is 
necessary  to  refer  here  only  very  briefly  to  the  more  im- 
portant aspects.  In  1838  the  territorial  legislature  of 
Wisconsin  sent  a  memorial  to  Congress  protesting  against 
the  proposition  to  limit  the  Wisconsin  Territory  by  lat- 
itude 42°  30'  on  the  south,  and  asking  that  the  Territory 
be  extended  as  far  south  as  the  Ordinance  of  1787  pro- 
vided. This  was  presented  in  1839  to  the  Senate  and 
appears  never  to  have  been  reported  out  of  the  judiciary 
committee.2  In  1839  again  the  Wisconsin  Territorial 
Legislature  adopted  resolutions,  this  time  calling  for  a 
vote  on  the  question  of  a  Constitutional  Convention  and 
advocating  that  the  people  in  the  disputed  district  be 
invited  to  express  their  opinion  in  the  matter  and  send 
delegates  to  a  convention  if  called.  This  was  followed 


1  Wisconsin  Historical  Society  Collections,  vol.  XL, pp.  494-501. 
"Boundary  Dispute  between  Illinois  and  Wisconsin."  Chicago 
Historical  Society,  May,  1904,  Radebaugh.  "The  Beginnings  of 
Illinois,"  Meese. 


2Wis.  Hist.  Soc.  Coll.,  supra,  n.  (1),  p.  496. 

197 


by  a  series  of  public  meetings  in  the  disputed  territory 
culminating  in  a  convention  at  Rockford  in  July,  1840, 
in  which  delegates  from  nine  counties  declared  in  favor 
of  the  Wisconsin  claim  and  their  desire  to  belong  to  the 
latter  state. 1 

But  the  people  of  Wisconsin  itself  were  generally 
opposed  to  this  movement  and  in  spite  of  repeated  ap- 
peals by  Judge  Doty,  who  became  Governor  of  the  Wis- 
consin Territory  in  1841  and  who  had  from  the  first  been 
a  strong  advocate  of  the  rights  of  Wisconsin,  nothing 
further  was  done  until  1842.  In  June  of  that  year  Gov- 
ernor Doty  in  a  letter  to  the  Governor  of  Illinois  spoke 
of  the  disputed  district  as  "one  over  which  Illinois  was 
exercising  an  accidental  and  temporary  jurisdiction." 
Finally,  after  several  meetings  and  ballotings  in  favor  of 
thsW  isconsin  claim  on  the  part  of  the  cities  in  the  dis- 
puted territory  in  Illinois,  and  several  ballotings  against 
the  forming  of  a  state  government  to  include  the  dis- 
puted territory,  by  the  inhabitants  of  Wisconsin  Terri- 
tory itself,  a  last  report  was  sent  to  Congress  setting 
forth  the  claims  of  Wisconsin  to  the  disputed  territory, 
but  was  never  acted  upon  by  that  body.  In  the  Wis- 
consin Constitutional  Convention  of  1846  an  attempt 
was  made  to  introduce  a  provision  calling  for  the  deter- 
mination of  this  boundary  question  by  the  Supreme 
Court  of  the  United  States,  but  this  failed  of  adoption 
by  the  Convention.2 

For  a  while  it  had  seemed  as  though  serious  conse- 
quences might  result  from  the  feeling  engendered  by  the 
dispute3  but  the  matter  was  forever  settled  as  a  living 
question,  when  in  1848  Wisconsin  accepted  as  her  south- 
ern boundary  the  line  42°  30'.  That  this  determination 


1Wis.  Hist.  Soc.  Coll.  v.  XL,  pp.  496,  497. 

*IMd.t  pp.  498-501. 

3See  Language  of  Gov.  Doty,  Wis.  Hist.  Soc.  Coll.  XL, p.  500, 
and  that  of  D.  A.  J.  Upham,  a  member  of  Wis.  Legis.  Council. 
Ibid.  p.  499. 

198 


of  the  question,  however,  did  not  convince  everyone  of  its 
justice  or  even  legality  appears  from  Thwaites'  conclud- 
ing remarks  on  the  controversy  as  late  as  1888,  to  the 
effect  that  "Wisconsin  became  a  State  in  1848,  stripped 
by  the  youthful  greed  of  her  southern  neighbor  and  po- 
litical manceuvering  in  Congress  of  8500  square  miles  of 
the  richest  and  most  populous  territory  in  the  entire 
Northwest.  * 

The  supporters  of  the  right  of  Illinois  rested  their 
claim  on  the  ground  that  the  words  of  Article  V.  of  the 
Ordinance  of  1787  permitting  Congress  to  form  one  or 
more  states  "in  that  part  of  the  said  territory  which  lies 
north  of  an  east  and  west  line  drawn  through  the  southT 
erly  bend  or  extreme  of  Lake  Michigan"  did  not  mean 
that  the  line  could  not  be  put  farther  north  if  Congress 
so  pleased.  Governor  Ford  thought  the  Ordinance  of 
1787  was  not  violated  by  the  provisions  as  to  the  bound- 
aries in  the  Enabling  Act.  "There  is  nothing"  he  writes 
"In  the  Ordinance  requiring  such  additional  state  to  be 
formed  of  the  territory  north  of  that  line;  another  state 
might  be  formed  in  that  district  of  country  though  not 
of  it,  it  need  not  necessarily  include  the  whole.  By  ex- 
tending the  limits  north  of  the  disputed  line  Congress 
still  had  power  to  make  a  new  state  in  that  district  north 
of  it,  not  including  the  portion  given  to  Illinois."* 

Nathaniel  Pope  himself  in  offering  the  amendment 
changing  the  boundary  seems  to  have  believed  it  to  be 
in  accord  with  the  Ordinance  of  1787,  for  in  the  same 
breath,  almost,  with  the  proposal  of  the  changed 
boundary  he  affirmed  the  binding  nature  of  the  Ordi- 
nance. 3  Congress,  however,  clearly  realized  that  the  pro- 
posed boundary  was  in  violation  of  the  Ordinance  of 
1787,  as  evidenced  by  the  provisions  relating  to  the  Ohio 

1Wis.   Hist.  Soc.  Coll.  vol.  XI.,  p.  501. 
*Ford,  "History  of  Illinois,"  p.  21. 
"Annals  of  Congress,  1818,  vol.  II.,  p.  1677. 

199 


and  the  Indiana  northern  boundaries1  as  well  as  by  the 
express  language  of  the  Enabling  Act  for  Illinois,  Sec.  4: 
"Provided  that  the  same  (i.  e.,  the  state  government) 
whenever  formed  shall  be  republican  and  not  repugnant 
to  the  Ordinance  of  the  thirteenth  of  July,  1787 ',  except- 
ing so  much  of  said  articles  as  relate  to  the  boundaries 
of  the  States  therein  to  be  formed."'*'  From  this  it  ap- 
pears, therefore,  that  Congress  considered  the  Ordinance 
of  1787  as  not  binding  upon  them  and  hence  that  they 
were  free  to  repeal  it  if  they  chose  or  ignore  any  part  of 
it  by  such  enactment,  as  is  moreover  shown  also  by  the 
change  in  the  number  of  inhabitants  required  for  the 
forming  of  a  state,  from  sixty  thousand  in  the  Ordinance 
to  forty  thousand  for  Illinois  in  the  Enabling  Act. 

There  remained,  therefore,  two  important  questions 
unsolved  at  the  time  Wisconsin  finally  accepted  the  42° 
30' boundary  line,  which  stood  in  the  way  of  a  clear  claim 
on  her  part  to  the  disputed  territory;  first,  was  Article  V. 
of  the  Ordinance  of  1787  binding  at  all  on  the  Congress  in 
subsequent  years  and,  second,  if  so,  did  this  boundary 
provision  violate  the  requirements  of  said  Article.  Inas- 
much as  the  United  States  Supreme  Court  was  never 
called  upon  to  decide  these  questions  it  must  ever  remain 
conjectural  as  to  what  the  legal  determination  of  the 
question  would  have  been  in  that  tribunal  of  last  resort. 

As  regards  jurisdiction  on  the  Wabash  river  the 
Enabling  Act  provided  that  Illinois  should  have  concur- 
rent jurisdiction  with  Indiana,  as  also  on  the  Mississippi 
river  with  any  state  or  states  to  be  formed  west  thereof, 
so  far  as  said  rivers  should  form  a  common  boundary. 

In  August,  1818,  the  first  Constitution  of  Illinois  rati- 
fied the  boundaries  assigned  by  Congress,  omitting  the 
provisions  as  to  concurrent  jurisdiction  mentioned  above. 
At  this  time  six  other  states  of  the  eighteen  having 
constitutions  had  inserted  a  clause  defining  their 

1Annals  of  Congress,  1818,  v.  II.,  p.  19. 
2Enabling  Act  tor  Illinois,  1818,  Thorpe,  p.  967. 

200 


boundaries,1  though  none  was  to  be  found  in  the  New 
England  or  in  the  eastern  states  north  of  Virginia. 

In  the  Constitution  of  1848  the  references  to  the 
boundaries  was  embodied  in  a  separate  paragraph  and  a 
few  minor  changes  made  in  the  wording.2  The  most  im- 
portant change  from  the  provision  in  the  first  Constitu- 
tion was  the  addition  of  the  proviso  at  the  end  of  the 
article,  relative  to  jurisdiction  on  the  Ohio  river,  to  the 
north-west  shore  of  which  only  Illinois  extended,  to  the 
effect  that  "this  State  shall  exercise  such  jurisdiction  upon 
the  Ohio  river  as  she  is  now  entitled  to,  or  such  as  may 
hereafter  be  agreed  upon  by  this  State  and  the  State  of 
Kentucky." 

The  Article  on  Boundaries  in  our  present  Constitu- 
tion was  adopted  without  change  from  the  Constitution 
of  1848,  as  was  also  the  case  in  framing  the  proposed 
Constitution  of  1862. 

In  closing,  permit  me  to  refer  briefly  to  some  of  the 
court  decisions  on  the  meaning  of  the  Boundary  Article 
which  served  more  definitely  to  fix  the  boundaries  as  de~ 
fined  in  the  Enabling  Act.  The  western  boundary  line 
described  as  running  from  the  middle  of  the  Mississippi 
river  at  lat.  n.  42°  30'  "down  along  the  middle  of  that 
river  to  its  confluence  with  the  Ohio  river, "  has  in  several 
cases  been  held  to  be  the  middle  of  the  main  navigable 
channel  as  usually  followed, 3  and  though  the  river  may 
change  imperceptibly  from  natural  causes,  the  river  as  it 
runs,  continues  to  be  the  boundary.  But  if  the  river  should 
suddenly  change  its  course  or  desert  the  original  channel, 

»Ga.  1798,  Art.  l.;Ind.  1816,  Art.  XI.,  §17;  N.  Car.  1776,  XXV.; 
Ohio,  1802,  Art.  VIII.,  §6;  Tenn.,  1796,  Art.  XL,  §32;  Virg.  1776, 
next  to  last  paragraph. 

2  Journal  of  Convention  of  1847,  p.  572. 

3.V/.  Louis  v.  Rutz,  138  U.  S.  249;  Iowa  v.  Illinois,  147  U.  S.  1. 
The  Enabling  Act  for  Missouri,  1820,  expressly  designated  the 
middle  of  the  main  channel  of  the  Mississippi  river,  as  the  bound- 
ary for  that  State  along  that  river  and  the  Enabling  Act  for  Illinois 
designating  merely  "the  middle  of  the  river"  was  held  to  mean  the 
:same  thing. 

201 


the  boundary  remains  the  middle  of  the  deserted  river 
bed.1  Furthermore,  it  is  the  main  permanent  river  that 
constitutes  the  boundary,  not  that  part  which  flows  in 
seasons  of  high  water  and  is  dry  at  other  times.  Although 
the  physical  boundary  of  Illinois  extends  only  to  middle 
of  the  river  as  denned  above,  its  jurisdiction  for  entertain- 
ing suits  is  concurrent  over  the  whole  river  with  the 
States  of  Iowa  and  Missouri,  by  virtue  of  the  Enabling 
Act  for  Illinois  and  those  for  the  above  two  states.8  So- 
it  was  held  that  Illinois  courts  could  take  jurisdiction  of 
a  case  growing  out  of  a  collision  near  the  Missouri  shore 
of  the  Mississippi  river,  though  beyond  the  physical 
boundary  of  the  State,  and  apply  the  laws  of  Illinois  to- 
the  settlement  of  the  same. 

The  boundary  on  the  Ohio  river  is  expressly  limited 
by  the  Enabling  Act  of  1818  to  be  along  the  Northwestern 
shore,  and  hence  Illinois  can  exercise  no  jurisdiction  over 
the  Ohio  river  except  by  consent  of  Kentucky.  The 
rights  and  the  extent  of  territory  of  Illinois  along  that 
boundary  have  not  been  adjudicated  directly,  but  in  one 
case3  involving  the  boundary  between  Indiana  and 
Kentucky,  the  United  States  Supreme  Court,  affirming- 
earlier  cases  says,  "It  must  be  assumed  as  indisputable 
that  the  boundary  of  Kentucky  extends  to  low-water 
mark  on  the  northwestern  banks  of  the  Ohio  river".  In 
another  case4  the  same  court  had  said,  "When  a  great 
river  is  the  boundary  between  two  states  and  one  state 
is  the  original  proprietor  and  grants  territory  on  one  side 
only, — as  was  the  case  when  Virginia  made  its  original 
grant  of  land — it  retains  the  river  within  its  boundaries 
and  the  territory  granted  extends  to  the  low  water  mark 
on  its  side  of  the  river. ' '  This  being  true  of  Indiana's  rights 

^Buttenuth  v.  St.  Louis  Bridge  Co.,  123  111.,  536. 
2Thorpe,    "American  Charters,     Constitutions    and    Organic 
Laws." 

8 Henderson  Bridge  Co.  \.  Henderson  City,  173  U.  S.,  592. 
*Hadley  v.  Indiana,  5  Wheaton,  379. 

202 


on  the  Ohio  which  were  not  expressly  limited  by  the 
Enabling  Act  for  that  state;  it  is  a  fortiori  true  for 
Illinois  of  which  the  extent  is  expressly  limited.  But 
with  consent  of  Congress,  Illinois  might  by  agreement 
with  Kentucky  obtain  jurisdiction  over  the  Ohio  river 
and  for  that  purpose  the  constitutions  of  1848  and  the 
present  one  also,  contain  a  provision  regarding  such 
agreement  with  Kentucky. 1  To  make  such  agreement 
binding  the  consent  of  Congress  is  necessary2  though 
such  consent  need  not  be  expressed  but  may  be  implied. 3 

By  the  Enabling  Acts  for  both  Indiana  and  Illinois, 
these  States  are  given  concurrent  jurisdiction  over  the 
Wabash  river  and  the  decisions  relating  to  the  juris- 
diction of  this  State  on  the  Mississippi  river  are  equally 
applicable  to  the  Wabash  river  boundary.  The  extent 
of  the  territory  and  jurisdiction  of  Illinois  into  Lake 
Michigan  have  been  judicially  declared  to  include  all 
that  portion  of  Lake  Michigan  lying  east  of  the  main 
land  of  the  state  and  the  middle  of  Lake  Michigan  south 
of  lat.  42°30'.4 

Finally,  though  the  northern  boundary,  which,  as 
we  have  seen,  was  the  cause  of  an  extended  controversy 
for  almost  a  decade,  seems  not  to  have  been  the  subject 
of  judicial  opinion,  it  appears  from  a  letter  of  Professor 
John  E.  Daviess  of  the  United  States  Coast  and  Geo- 
detic Survey,  written  to  the  Secretary  of  the  Wisconsin 

^ee  Art.  I.,  Constitution  of  Illinois. 

Though  this  proviso  has  now  been  part  of  our  Constitution 
for  over  sixty  years,  and  relates  to  a  matter  which  would  seem  to 
be  of  considerable  importance  to  this  state,  no  record  can  be  found 
in  the  State  Department  of  either  Illinois  or  Kentucky  of  any  at- 
tempt to  come  to  any  such  agreement  as  this  proviso  contemplates. 

1 Virginia  v.   West  Virginia,  II  Wallace  39. 

8  Virginia  v.  Tennessee ',  148  U.  S.,  503. 

« Illinois  Central  R.  R.  v.  Illinois,  146  U.  S.,  387. 

In  February,  1909,  Representative  Mann  laid  before  the  House 
of  Representatives  a  plan  for  a  compact  between  the  states  of  Wis- 
consin, Illinois  and  Indiana  relative  to  concurrent  jurisdiction  on 
Lake  Michigan  for  purposes  of  criminal  prosecution  of  offenses 
committed  on  said  lake. 

203 


State  Historical  Society,  that  the  line  as  it  is  now  marked 
out  by  boundary  posts  does  not  represent  the  parallel  of 
42°  30'  as  the  constitution  of  each  state  prescribes, 
"but  zigzags  to  and  fro,  and  should  go  farther  south  than 
it  now  is,  about  three-fourths  of  a  mile,  in  the  western 
part  of  Wisconsin,  and  farther  north  in  and  east  of 
Beloit."1 


1Wis.  Hist.  Soc.,  Coll.,  XI.,  p.  591  n. 


204 


UNIVERSITY  OF  ILLINOIS-URBANA 
342.773J233P  C003 

THE  PREAMBLE  AND  BOUNDARY  CLAUSES  OF  THE 


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